Pathmind Subscription Agreement
Updated March 11, 2021
IMPORTANT – READ CAREFULLY: This Pathmind Subscription Agreement (the “Agreement”) is a legal agreement between you (an individual or a single entity) and Pathmind Inc. (“Pathmind”). WHEN YOU CLICK THE “I ACCEPT” BUTTON DURING THE ORDERING PROCESS, OR IF YOU OTHERWISE ACCESS OR USE A PATHMIND® MACHINE LEARNING SOLUTION SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS EXPRESSLY INCORPORATED BY REFERENCED HEREIN. THE AGREEMENT GOVERNS YOUR USE OF THE PATHMIND MACHINE LEARNING SOLUTION SERVICES AND CONTINUED ACCESS THROUGH SUCH SERVICES TO YOUR INPUT FILES AND TO RESULTING PATHMIND POLICY FILES (ALTOGETHER THE “SERVICE”). In this Agreement, the terms “you” or “your” refer to the entity you represent. The terms “we,” “us,” “our” or “ours” refer to Pathmind Inc. The Service facilitates machine learning experiments (“Experiments”) either (i) with simulation models (“Models”) that you have created using a third party or open source simulation model software program (each a “Model Program”) that creates simulation model and database files, or (ii) through your existing data sets (“Data Sets”), which meet Pathmind’s file format requirements for the Service (“Input Files”). Each Experiment processes the Input Files using one or more subscriber selected resources and configured hyperparameters available under our Service. These Pathmind machine learning resources apply virtual processing techniques in the course of Experiments resulting Pathmind generated policy files (“Pathmind Policy Files”), which, depending upon the Service and capacity you subscribe to under an Order (as further described below), you may then apply with your Model Program for further refinement and exercise of the Model or, using the Pathmind Policy Server Service, serve and utilize the Pathmind Policy Files in support and implementation of an applied production solution (“Production Solution”). Each individual operation of the Service on a particular Input File, using a selected software configuration with a resulting Pathmind Policy File, is referred to as a “Training Run” or “Run.” An Experiment is typically comprised of one or more Runs in seeking to optimize the Pathmind Policy File for the intended purpose of the Experiment or Solution. As further described below, your subscribed capacity (“Capacity”) for use of the Services relates to allowances and capabilities you acquire under an Order such as Users, Runs, Production Solution measures and other parameters defined by Pathmind, depending upon the Service. No right, license or access to the Model Program is provided under this Agreement and you are separately responsible for obtaining any and all required rights and licenses from the provider of the Model Program to use the Input Files as contemplated under our help text and subscriber documentation for the Service (“Documentation”) and under this Agreement. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT ACCESS OR USE THE SERVICE IN ANY WAY. In such case, you will have no right to use the Service. Pathmind is willing to grant you access to the Service on the condition that you accept all the terms and conditions of this Agreement. After you click the “I ACCEPT” button (or otherwise agree to this Agreement in writing) and complete your initial subscription enrollment and payment information for your chosen Service(s) and Capacity on the Pathmind website order page (www.pathmind.com/order) or a separately executed written order document (each an “Order”), we will provide you with access to and use of the subscribed Service(s) at the chosen Capacity. This Agreement begins on the date you click the “I ACCEPT” button or that you otherwise agree to this Agreement in writing (the “Effective Date”). The “Initial Term” will be the period of time specified on the Order. Upon expiration of the Initial Term, this Agreement and your subscription to your chosen Service(s) will automatically renew for successive one year periods (each a “Renewal Term”), unless you notify us in writing at least forty five days prior to expiration of the Initial Term or successive Renewal Term of your election not to renew. Pathmind’s then-current list price will apply at the time of renewal unless otherwise agreed in an Order.
1. Your Access to the Service.
1.1 Provision of the Service. Subject to the terms of this Agreement, we make the Service available to you during the Initial Term and any renewal terms (each a “Subscription Term” and altogether the “Term”) at the subscribed Capacity, solely for your own internal business purposes. You agree that your purchase and use of the Service is neither contingent upon the delivery of any future functionality, features or access to additional Model Programs nor dependent upon any oral or written public comments made by Pathmind with respect to future functionality, features or services, or upon any specific results or benefits from Pathmind Policy Files generated from the Service. In providing the Service, we will not modify your Input Files and will maintain the Input and Pathmind Policy Files (together “Files”) in accordance with our privacy and security policies available at https://pathmind.com/privacy. You acknowledge and agree that you are solely responsible for any Input Files that you elect to transmit or process through the Service and that no personal information will be included in the Input Files. You are responsible for obtaining and maintaining all software, equipment and services needed for access to and use of the Service.
1.2 Purchase of Subscriptions. You will purchase a subscription to the Service (each, a “Subscription”) for each individual that you authorize to use or access the Service and to whom an identification and password is provided. Each such individual is referred to in this Agreement as a “User.” Users may include your selected employees, consultants or other personnel. As part of your account set up process for Users, you may be asked to provide certain access credentials, such as username(s) and password(s) (“Access Credentials”). The number of Subscriptions or Capacity purchased cannot be decreased during a Subscription Term. You may purchase additional Subscriptions or Capacity by initiating a new Order for the additional User accounts. You are responsible for the confidentiality of the Access Credentials and all activity that occurs in your User accounts and for your Users’ compliance with this Agreement. You are not allowed to transfer or resell access or use of the Services (including, without limitation, any Pathmind Policy Files) to any third party. You have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Input Files and activities of Users in utilizing the Service. You are responsible for preventing unauthorized access to, or use of, the Service under this Agreement and agree to notify Pathmind promptly of any such unauthorized access or use of the Service.
1.3 Training Runs. We measure the utilization of a Service under a Service in conducting Experiments by individual Training Runs, with each instigation of a Training Run requiring a “Run Credit.” For each Subscription, you will choose a plan (“Subscription Plan”) with your chosen allocation of annual Run Credits for utilizing Service resources (“Annual Run Credits”). You may purchase additional Run Credits (“Additional Credits”) over and above your Subscription Plan. You can check the posted account information for the Subscription for the actual consumption and then available number Run Credits under the Subscription and determine if Additional Credits will be needed to complete a chosen Experiment. YOU ARE RESPONSIBLE FOR THE ACTUAL CONSUMPTION OF RUN CREDITS UNDER YOUR SUBSCRIPTION(S). THE PROCESSING OF EXPERIMENTS AND THE INSTIGATION OF TRAINING RUNS WILL BE SUSPENDED IF AND WHEN THE RUN CREDITS FOR A SUBSCRIPTION ARE FULLY CONSUMED. For multi-year Subscription Terms, the allocation of Annual Run Credits will expire at the end of each year during the respective Subscription Term, but you may roll over (on a year to year basis) any unconsumed Additional Credits under a Subscription within the respective Subscription Term. However, all Run Credits for a given Subscription Term will expire at the end of that Subscription Term and no Experiment may continue or Training Run may be conducted beyond or after the Term.
1.4 Additional Users. Users are assigned on a named user basis. You may reassign Subscriptions to the Service to new Users that replace former Users whose employment or engagement has terminated or no longer need access to the Service. You may not allow more than one User to use or otherwise share a single Subscription. You understand and agree that fees for Subscriptions purchased in the middle of a billing month will be prorated for that billing month and the per-User rate for any additional Subscriptions purchased will be the same as the per-User rate in effect at the time you purchase additional Subscriptions.
1.5 Pathmind Policy Files. Unless you subscribe to the Pathmind Policy Server Service and purchase the Capacity to implement Pathmind Policy Files in conjunction with a Production Solution, you are only permitted to use the Pathmind Policy Files for further refinement and exercise of your Model. By way of example, measures of Capacity for deployment of Pathmind Policy Files in conjunction with a Production Solution may be based on, among other things, a number of deployment sites or other measure, as defined in an Order.
1.6 Use Guidelines. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 11.6), distribute, time share, integrate, download, or otherwise commercially exploit or make the Service (including, without limitation, any Pathmind Policy Files) available to any third party, other than to Users or as otherwise specifically authorized by this Agreement or other writing between the parties; (ii) use the Service directly or indirectly in violation of applicable laws or any third party license or other obligations; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates any third-party’s privacy or intellectual property rights; (iv) upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or any data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
1.7 Technical Support Services. We make available technical support services (“Technical Support”) for Users under our then-current service programs, for a separate charge, through our website. The Technical Support is provided through our website and via email during our business hours, to address questions concerning the operation and features of the Service. We retain the right to determine in our sole discretion the scope and availability, and the service programs and associated pricing, for our Technical Support. Once subscribing to Technical Support, requests should be directed to Pathmind at [email protected], identifying the Subscriber (for our verification) and providing a brief description of the issue.
1.8 Suspension. We may suspend or deny access to the Services by you or your Users without incurring any resulting liability if: (i) we reasonably believe that you or any User have failed to comply in any material respect with any term of this Agreement, or accessed or used the Services beyond the scope of rights granted or for a purpose not authorized under this Agreement; (ii) you or any of your Users are or have been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Services; or (iii) we receive a judicial or other governmental demand or order, subpoena or law enforcement request that requires us to do so. We reserve the right, with notice to you, to change the password for any User if we reasonably believe that the applicable password is no longer secure.
2. Fees and Payment.
You will provide us with valid credit card or payment information when you place your Order for the Service or any Technical Support program. By providing such credit card or payment information, you authorize us to charge the credit card or process the payment mechanism (including, as appropriate, issue an invoice) for the fees for the Subscription Plan, Additional Credits, Capacity, or other services you have selected on the Order. We will charge your credit card (or process for invoicing and payment) in advance for all fees and charges due under this Agreement. For payments other than via a credit card, payment terms will be specified on the respective Order. Except as otherwise specified herein or in an amendment hereto, all fees are quoted and payable in US dollars, payment obligations are non-cancelable, and fees paid are non-refundable. Service fees are based on Subscriptions (including, without limitation, Run Credits) and Capacity purchased and not actual usage. You are responsible for providing complete and accurate billing, address and contact information to us and for maintaining such information in the Service. If you believe a particular charge is incorrect, you must contact us in writing within 60 days of the payment date to be eligible to receive any credit. If your credit card charge is denied or reversed and/or if your account is 30 days or more overdue, then, in addition to any of our other rights or remedies, we reserve the right to suspend your access to the Service without liability to you until you pay all amounts in full. Our fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder, excluding taxes based on Pathmind’s net income or property.
3. Proprietary Rights.
3.1 License. Subject to the terms of this Agreement, we grant you a nonexclusive, nontransferable (except as permitted pursuant to Section 11.6) license to access and use the Service per the subscribed Capacity during the Term solely for your own internal business purposes in conducting Experiments or, with respect to Pathmind Policy Files, as otherwise expressly allowed under this Agreement for your subscribed Service and Capacity. You grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information you or your Users provide relating to the features, functionality or operation of the Service.
U3.2 Reservation of Rights. You agree that this Agreement constitutes a license of rights to use the Service and is not a sale of any rights in or to the Service or the underlying software. Accordingly, you further agree that you are a licensee and not a purchaser of rights to the Service or the underlying software, outputs or results, other than the rights expressly granted to you in this Agreement. You agree that: (i) except for the limited rights expressly granted to you under this Agreement, Pathmind reserves all rights, title and interest in and to the Service (including, without limitation, the Pathmind Policy Files), the underlying software, any Documentation and all any materials we provide to you as part of, or in the course of providing the Service or any Technical Support (collectively with the Service and Documentation, the “Licensed Materials”) including all intellectual property rights inherent therein; (ii) no rights are granted to you other than as expressly set forth in this Agreement; (iii) any configuration or deployment of the Service does not affect or diminish Pathmind’s or its licensors’ rights, title, and interest in and to the Licensed Materials; and (iv) nothing in this Agreement shall limit in any way Pathmind’s right to develop, use, license, create derivative works of, or otherwise exploit the Licensed Materials, or to permit third parties to do so.
3.3 License Restrictions. You shall not: (i) modify, copy, display, republish or create derivative works based on the Service, the underlying software or any other Licensed Material; (ii) frame, scrape, link to or mirror any content forming part of the Service; (iii) reverse engineer the Service or the underlying software; or (iv) access the Service in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. You are only permitted under this Agreement to use the Pathmind Policy Files for performing simulations in conjunction with a Model Program or your Data Sets and not separately in a production or decision support environment or for production or decision support purposes unless and only to the extent of additional Capacity acquired under an Order.
U3.4 Files. As between Pathmind and you, you exclusively own all rights, title and interest in and to your Input Files and have sole responsibility for the content, accuracy, quality, and legality of such Input Files. Pathmind shall not access your User accounts, including any Files, except to provide the Service under this Agreement, to respond to service or technical problems under Technical Support, to confirm compliance with the terms of this Agreement, or otherwise at your direction, request or as expressly permitted, nor shall Pathmind disclose any Files to any third party other than third parties that have a legitimate need to know and are bound to protect the confidentiality of the Files. You hereby grant Pathmind a nonexclusive, royalty-free license to access and use the Files (to the extent you have any proprietary rights or interest therein) to exercise our rights and perform our obligations in accordance with the terms of this Agreement. Pathmind shall be not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Files, except that, subject to all limitations set forth in this Agreement, we will be responsible or liable only to the extent that any deletion, alteration, destruction, damage, loss or failure to store Files is directly and proximately caused by Pathmind’s actions. Subject to Section 9.3, we will continue to make such Files available for each Subscription for up to ninety (90) days after the expiration or termination of the Subscription (for example, for non-renewal) and will thereafter be deleted and no longer available to you. Pathmind reserves the right to develop and commercialize benchmarks and measures based on Aggregated Data and to use Aggregated Data to improve and enhance the Services and for other development, diagnostic and corrective purposes. “Aggregated Data” will mean Files and/or statistical and analytical information from the selection, design and operation of Experiments: (i) anonymized, and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a manner in which your identity (or the identity of your Users) may not be derived. The foregoing shall not limit, in any way, Pathmind’s confidentiality obligations pursuant to Section 5 below.
4. Evaluation Trial
4.1 General. If you have not yet purchased the Services, but rather have obtained access to them for evaluation purposes (the “Evaluation Services”), the terms of this Section 4 shall apply to the Evaluation Services, the terms of Sections 2, 3.1, 3.4, and 7 shall not apply to you, and the Subscription Term for the Evaluation Services shall commence on the Effective Date and continue until the earlier of: (i) thirty (30) days after your grant of access to the Evaluation Services; (ii) the start date of any Services that you purchase, or (iii) termination of this Agreement by either party for any reason under Section 9 of the Agreement or for convenience immediately upon written notice to the other party (the “Evaluation Period”).
4.2 Evaluation License. In relation to Evaluation Services only and subject to the terms and conditions of this Agreement (excluding Section 3.1), we grant you the non-transferable, non-assignable, limited, revocable right to use Evaluation Services (including any software embedded therein) solely for purposes of evaluating the performance and functionality of the Services, on a trial basis free of charge for the Evaluation Period. We will allocate a limited number of Run Credits as part of the Evaluation Services to you. The license in this Section 4.2 and all of your rights to use the Services and the allocated Run Credits will terminate at the end of the Evaluation Period.
4.3 Disclaimer. Any Input Files that you or your Users upload or enter into the Evaluation Services during the Evaluation Period, and any resulting Pathmind Policy Files, will be permanently lost or erased at the end of the Evaluation Period unless you: (i) purchase a subscription to the Services; or (ii) export such Input Files prior to the end of the Evaluation Period. If you do not purchase Services prior to the end of the Evaluation Period, we will have no liability of any kind to you or any third party for the erasure or deletion of any of your or your Users data by us after the Evaluation Period.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), orally or in writing that reasonably should be understood to be confidential, including the terms and conditions of this Agreement, Input Files, the Service (including, without limitation, Pathmind Policy Files), any Documentation, and other Licensed Materials, business plans, technical information, techniques and business processes. The obligations in this Section 5 shall not apply to information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure hereunder or is lawfully received from a third party by the Receiving Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; or (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner it protects the confidentiality of its own proprietary and confidential information (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. In addition, you will permit access to the Service, Documentation and the other Licensed Materials only by Subscribers who have a need to know in connection with the license rights granted under this Agreement. You agree to secure and protect the Licensed Materials in a manner consistent with the maintenance of Pathmind’s rights therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with your Subscribers to satisfy your obligations hereunder. Except as provided for in Section 11.6, you will not sell, transfer, publish, disclose, display or otherwise make available any portion of the Service or any of the other Licensed Materials to others. You shall cooperate with and assist Pathmind in identifying and preventing any unauthorized use, copying or disclosure of the Service or other Licensed Materials. Without limitation of the foregoing, you will advise Pathmind immediately in the event you learn or have reason to believe that any person under your direction or control has violated or intends to violate the confidentiality of the Service or other Licensed Materials or Pathmind’s proprietary rights, and you will, at your expense, cooperate with Pathmind in seeking injunctive or other equitable relief in the name of, at Pathmind’s sole discretion, either you or Pathmind, against any such person.
6. Limited Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that we will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that: (a) you own or otherwise have sufficient rights in your Input Files to grant Pathmind the licenses you grant in this Agreement and to utilize the Service; (b) you have not falsely identified yourself nor provided any false information to gain access to the Service; (c) you have obtained appropriate consents from all Subscribers and others whose personal information is transmitted, processed, and stored through the Service; and (d) all billing and contact information provided by you is true and correct. In addition, you represent and warrant that neither you nor any of your Subscribers are an organization or foreign government designated by the United States Department of State as a State Sponsor of Terrorism, a Foreign Terrorist Organization, or otherwise included on the list of Individuals and Entities Designated by the State Department under Executive Order 13224. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PATHMIND AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND WHATSOEVER WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, PATHMIND AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, COMPLETENESS OR RESULTS OF THE SERVICE. WE DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS.
Subject to this Agreement, Pathmind will defend and settle any claims, demands, suits or proceedings (“Claims”) made or brought against you by a third party alleging that your use of the Service as contemplated under this Agreement directly infringes a valid U.S. patent, copyright, or trademark of a third party or misappropriates such third party’s trade secrets. Pathmind will pay any damages or costs finally awarded under any Claim. As a condition of Pathmind’s foregoing obligations, you must: (a) give Pathmind prompt written notice of the Claim; (b) give Pathmind sole control of the defense and settlement of the Claim (provided that Pathmind may not enter into a settlement that imposes any obligations or liability on you without your prior consent); and (c) provide Pathmind, at its cost, all reasonable assistance in the defense or settlement of the Claim. Pathmind shall have no indemnification obligation for Claims arising from the combination of the Service with any of your products, services, hardware or business processes, or use of the Service by you other than in accordance with this Agreement or the Documentation. If the Service is held to be infringing, Pathmind may elect, at its expense to: (i) replace or modify the Service as appropriate; (ii) obtain a license for you to continue using the Service; (iii) replace the Service with a functionally equivalent service; or (iv) terminate the Service and refund any prepaid, unused fees. This Section 7 states Pathmind’s entire liability and your exclusive remedy for any claim of intellectual property infringement. Subject to this Agreement, you shall defend and settle any Claims made or brought against Pathmind (i) by a third party alleging that your Input Files, or your use of the Service in violation of this Agreement, infringes or otherwise violates such third party’s property, privacy or other rights, or violates any applicable law; or (ii) arising out of or in any way relating to or caused by your use, creation, implementation or deployment of Pathmind Policy Files in conjunction with a Production Solution or otherwise. Upon receiving notice of a Claim, Pathmind shall: (a) give you prompt written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not enter into a settlement that imposes any obligations or liability on us without our prior consent); and (c) provide to you, at your cost, all reasonable assistance in the defense or settlement of such Claim. Your indemnification obligation shall be offset to the extent your ability to defend or settle a claim is jeopardized by our failure to comply with the preceding sentence.
8. Limitation of Liability.
EXCEPT FOR YOUR BREACH OF YOUR OBLIGATIONS UNDER SECTIONS 1.6 OR 3 OR BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS LICENSORS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR YOUR BREACH OF YOUR OBLIGATIONS UNDER SECTIONS 1.5 OR 3, EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5 OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 OR YOUR PAYMENT OF ANY FEES OR CHARGES DUE TO US, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. The foregoing limitations shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Furthermore, certain states and jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
9. Term; Termination.
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until the expiration or termination of all Subscriptions granted in accordance with this Agreement.
9.2 Termination for Cause. A party may terminate this Agreement for cause: (i) if the other party is in material breach under this Agreement and fails to cure such breach within 30 days (or immediately in the case of a material breach which by its nature cannot be cured) of the receipt of written notice of such material breach from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is not favorably resolved within 60 days. This Agreement constitutes an executory contract in accordance with Section 365 of the U.S. Bankruptcy Code. If you file or have filed against you by a third party any petition under the U.S. Bankruptcy Code, you must either assume or reject this Agreement. Upon an assumption, you shall comply with 11 U.S.C. §365(b)(1); upon a rejection, all of your rights hereunder will terminate. Upon any termination for cause by you, Pathmind shall refund to you any prepaid fees covering the remainder of the Subscription Term after the date of termination. Upon any termination for cause by Pathmind, your right to access or use any Files in conjunction with the Service or otherwise immediately ceases.
9.3 Rights Upon Termination. Upon termination of this Agreement for any reason, your access and use of the Service (by you or your Users) will immediately terminate; provided, however that we will retain and make your Input Files available to you for 30 days after the effective date of termination (unless we terminated the Agreement for cause, in which case no availability will be accorded after termination). After such 30-day period, we have no obligation to maintain or provide any Files and will thereafter, unless legally prohibited, be entitled to delete all Files in our possession or under our control.
9.4 Surviving Provisions. Termination shall not relieve you of your obligation to pay any fees accrued or payable to Pathmind under this Agreement prior to the effective date of termination, and you shall immediately pay to Pathmind all such fees upon the effective date of termination. In addition, the following provisions shall survive any termination or expiration of this Agreement: Sections 1.6, 2, 3.2, 3.3, 3.4, 5, 8, 9.3, 9.4, 10 and 11.
10. U.S. Government Restricted Rights.
The Service is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, and involves the use of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024, all United States Government Subscribers and other end-users acquire Subscriptions to the Service only as a “commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement.
11. General Provisions.
11.1 Privacy & Security; Disclosure. You agree to comply with our privacy and security policies which may be viewed at https://pathmind.com/privacy. Because the Service is a hosted, online application, we occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. We may disclose the fact that you are a customer.
U11.2 Operating Hours and System Maintenance. We will use commercially reasonable efforts to ensure that you receive uninterrupted and continuing service throughout the Term. Our technical support services are generally provided during our regular business hours, except for weekends and our company recognized holidays. We or our cloud service provider may need to carry out routine maintenance or urgent maintenance on the Services or the Services may become unavailable for reasons not within our control. In such cases, we will use reasonable efforts to inform you of any downtime and restore the Services as soon as practicable.
11.3 Modification to Terms. We reserve the right to modify the terms and conditions of this Agreement or our policies relating to the Service at any time, effective upon the commencement of any renewal term. You are responsible for reviewing this Agreement prior to renewal. CONTINUED USE OF THE SERVICE AFTER ANY SUCH CHANGES AND RENEWAL SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES.
11.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.5 User Disputes. We are not responsible for addressing any disputes between you and your Users or between Users. In the event of a concern, claim or dispute between or among you and your Users, the parties to that dispute much communicate directly with each other to resolve the dispute. In that event that we receive complaints about you from any User, we will determine, in our sole discretion, whether to investigate the complaint and may direct you or the User to respond to the other party directly.
11.6 Electronic Communications. For contractual purposes, you consent to receive communication from us in electronic form and agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide electronically satisfy any legal requirement that such communications would satisfy if in writing. The foregoing does not affect your statutory rights.
11.7 Notice. For notices that are directed to you as part of Pathmind’s general customer base, we may give notice by means of a general notice on the Service, by electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address listed in our account information. Such notice shall be deemed to have been given 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Where we require you to provide an email address, you are responsible for providing us with your most current email address. If the last email address that you provide to us is not valid, or for any reason is not capable of delivery to you of any notices required under this Agreement, our dispatch of the email containing such notice will nonetheless constitute effective notice. All notices specifically required to be sent under this Agreement shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile or email (as provided above); (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to your address on record in Pathmind’s account information or if notice to Pathmind at its principal office indicated above for the attention of [email protected], or to such other address or individual as the parties may specify by written notice to the other party in accordance with this Section 11.7.
11.8 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 No Assignment. Neither party may assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining the other party’s written consent, except that each party may assign the Agreement without the other party’s consent (i) to an affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party; provided that the assigning party provides prompt written notice to the other of such assignment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
11.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
11.11 Governing Law. This Agreement shall be governed exclusively by the laws of the State of California, without regard to conflicts of laws rules. The state and federal courts located in the City and County of San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.12 Export Control. You shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. The U.S. regulations described in the preceding sentence include, without limitation, the Export Administration Regulations maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the US Department of State.
11.13 Publicity. You agree upon our reasonable request, and subject to your prior written consent, to: (i) serve as a reference account and provide a testimonial regarding Pathmind and the Service; (ii) be identified as our customer on our website, marketing materials and other mutually agreed communications, using your trade name and logo design; and (iii) collaborate with us on written and possible video case studies describing the value realized from the successful deployment of our Services. Subject to the foregoing and except as mutually agreed by the parties, neither party will issue any press release or make any public communication with respect to this Agreement or your use of the Services.
11.14 Limitation on Actions. Except with regard to your obligations to pay money or to pay or reimburse us for taxes, all disagreements or controversies of any kind, whether claimed in tort, contract or otherwise, either concerning this Agreement or any other matter whatsoever with regard to the Services must be brought within one (1) year after the accrual of the disagreement or controversy,
11.15 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions set forth on any purchase order or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.